To: conservativegramma
Obviously you didn’t read the brief. I’m not doing your homework for you.

I have read the brief. It's pathetic.

First, Donofrio refers to Chapter 35§ 16-3501 as a "federal statute." It is NOT a federal statute. It is a DC statute. That's why the statute is found in the DC Code, and not the United States Code.

Second, where he attempts to cite another means by which a President can be removed from office, he references Article II, Section 1, Clause 6.




Article II, Section 1, Clause 6 provides NOTHING with regard to the removal of the President. It ONLY provides for SUCCESSION to the office of President AFTER the President has been removed, died, resigned, or otherwise incapacitated during his term.

The ONLY power Article II, Section 1, Clause 6 grants Congress is the power to determine by law who shall succeed as President should BOTH the President and Vice President be removed from office, died, resigned, or become incapacitated.

That's it. No other power is granted to Congress nor does it provide for anything with regard to the removal of a President. It states only what is to happen AFTER removal.

Donofrio then tries to argue that Congress, by way of the quo warranto DC statute has DELEGATED its Article II, Section 4 powers to remove the President from office to the DC District Court.




There is no provision in the Constitution for Congress to delegate ANY of its enumerated powers to ANY other branch of government.

Gee, how 'bout Obama gets the Democratic Congress to delegate Congress' legislative power to the executive branch?

According to Donofrio, there would be no Constitutional problem with this.

Doesn't no one see what an utterly asinine argument Donofrio is making here?


14 posted on 3/5/2009 8:26:38 PM by Michael Michael

Some who support Obama’s eligibility will seek to subvert the Constitution by arguing that the Constitution states that the sole remedy for removing the President is impeachment. Nowhere in the Document does it say that. Those who believe it must “imply” or “assume” that is the case. But the Constitution does not state that impeachment is the sole means of removing the President.

The Constitution does say that Congress has the sole authority to impeach and the Senate to convict, and that the President “shall” be removed upon conviction, but it does not say that impeachment is the sole means of removal. You will hear people say that it does say that in the days ahead. It is a lie.

I have uncovered a plethora of evidence - within and without the Constitution - which I strongly believe proves that the framers provided Congress with the power to remove a President who is found to be ineligible. This makes sense because not every person who is found to be ineligible is guilty of a crime.

I don't think I have ever seen lawyers, until this deal, release legal brief's to the press? Have I missed something previously in the press?

I think I see how Leo is reading this. The text in question in Article II, Section 1 presents a list of possible causes of a vacancy in the presidency:

1. Removal
2. Death
3. Resignation
4. Inability to discharge the powers and duties

.

I seem to recall that there's something in the Constitution (in an amendment) that provides for the fourth one, but I haven't looked for it specifically. It's been used, IIRC, when Eisenhower was temporarily incapacitated, for example.

1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Leo tends to read things incorrectly, MM.

Btw, don't know if you all know that he was the originator of the grand jury idea.

Evidently he has nobody to bounce his ideas off of, so they hit the Web raw, as it were.

I think I see how Leo is reading this. The text in question in Article II, Section 1 presents a list of possible causes of a vacancy in the presidency:

1. Removal
2. Death
3. Resignation
4. Inability to discharge the powers and duties

Thus, there are four methods by which the office of president could become vacant. I seem to recall that there's something in the Constitution (in an amendment) that provides for the fourth one, but I haven't looked for it specifically. It's been used, IIRC, when Eisenhower was temporarily incapacitated, for example.

Phil says:
March 6, 2009 at 9:58 am
Reality Check,

You said, “You mean the “National Grand Jury” can’t remove him?”

Sometimes I have to wonder what goes through your mind. Who ever claimed that a jury of any type could remove the President from office? As far as I know, there are, presently, only four ways to remove a sitting President from office:

1. His/her own death;
2. His/her resigning;
3. Impeachment;
4. Quo warranto being granted

Reality Check, let’s deal with reality here: the only thing that a jury of any sort does is present evidence to another legal entity (yes, even if it’s to render a verdict, that’s still technically presenting to the Court such an opinion). If you’re going to wax sarcasm, at least have some semblance of intellectual honesty about it.

-Phil

According to RSOL Phil the president can be removed by a grant of Quo Warranto. That seems to be the new birther meme. Funny, that one is not in my copy of the Constitution.

Donofrio conveniently ignores:

That the ONLY way a President can be removed from office is by impeachment in the House, and subsequent conviction in the Senate.

That the Constitution explicitly gives the House the SOLE POWER of impeachment, and the Senate the SOLE POWER to try impeachments.

That there is NOTHING in the Constitution empowering Congress to delegate any of its constitutional authorities to any other branch of government.

§ 468a. Writs of quo warranto in the District Courts. The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States. The District Courts of the United States have jurisdiction of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States.” * The Revised Statutes provide that “whenever any person holds office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution, the district attorney for the district in which such person holds office shall proceed against him by writ of quo warranto, returnable to the Circuit or District Court of the United States in such district, and prosecute the same to the removal of such person from office..”8 This applied to persons disqualified from holding office by the Fourteenth Amendment, whose disabilities had not been removed.

Source: Roger Foster, Treatise on Federal Practice, Civil and Criminal, Including Practice in Bankruptcy, Admiralty, Patent Cases, Foreclosure of Railway Mortgages, Suits Upon Claims Against the United States: Proceedings Before the Interstate Commerce Commission and the Federal Trade Commission, Callaghan & company, 1921

Good find on Quo Warranto here:
http://nativeborncitizen.wordpress.com/ ... of-the-us/

16-3501. Persons against whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

§ 16-3502. Parties who may institute; ex rel. proceedings.

The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.

If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.

It's the 25th Amendment -- and here is what it provides:



That does provide an alternate way to remove a President, other than impeachment, as highlighted above.

I've highlighted the portion that describes the procedure to be followed if you have a nut case President who doesn't agree that he's incapacitated (think The Caine Mutiny in the White House -- where the Prez had gone stark raving mad but he won't admit it ).

But note that this procedure is even more difficult to accomplish than impeachment, because of the required 2/3 majority in both houses., as well as half the cabinet and the VP.

That's why Donofrio is wrong with his quo warranto idea. He correctly anticipates that it will be argued that impeachment is the only way to remove a pres, and he is also correct that quo warranto is the right procedure when there is a claim that a federal office holder is ineligible for the job he holds.... but he's wrong to thing quo warranto applies to the Chief Executive. The statute is really meant to deal with political appointees in lower level positions. The Constitution is pretty clear that a President can't be removed without a vote of both houses of Congress, and always at least 2/3 of the Senate .

It is also clearly unconstitutional for Congress to delegate its major powers to another agency of a different branch of government - that's called the "nondelegation doctrine". So Donofrio is wrong on that point as well.